Quill & Quire
March, 1999
pages 13,14

To filter or not to filter?

Burlington library seeks legal opinion

by Derek Weiler

As public Internet use has increased in libraries across Canada, so too have debates among boards, staff, and patrons about filtering. Filtering software can block access to selected material at a specific computer, but also raises legal questions. Must a library block obscenity? Does filtering contravene freedom of expression laws? Although no court has yet tested these issues, some library systems, including one in Vancouver and one in Burlington, Ontario, have sought formal legal opinions. Both opinions appear to agree on at least one major point: libraries shouldn't rush to install filters on all their public-access computer terminals.

In a recent report to the Burlington Public Library (BPL), Toronto lawyer Ron Kanter listed filtering as one way to protect a library from obscenity charges - but not the only way. And if a library does install filters, Kanter said, it should also provide unfiltered Internet access. Sonia Lewis, deputy chief librarian for BPL, summarized the legal opinion and her library's response to it at the Ontario Library Association's Super Conference, held in Toronto in January.

BPL installed its first public-access Internet terminals at a new branch in September 1996, adding more throughout the system over the following months. From the beginning the library was sensitive to the Internet's potential for controversial content, Lewis said. The Burlington system's original Internet-use policy, extensively documented within its libraries, stated that parents were responsible for monitoring their children's Net access.

Double Exposure

In January, 1998, however, BPL patron David Auger was reading to his five-year-old daughter in the library when they noticed an image of a nude woman that had been left on the screen of a nearby Internet station. Favouring stronger safeguards to prevent inadvertent exposure to offending images, Auger and others approached the BPL Board later that month. David Jones, a McMaster University computer science professor and co-founder of Electronic Frontier Canada (a group supporting freedom of electronic information), also spoke to the Board, arguing against censorship of any kind.

The Board directed library staff to review their Internet policy, and the following month staff suggested a number of changes, including relocating terminals to make screens less visible to passersby, and installing privacy screens (which are affixed over monitors, rendering them dark to anyone not sitting directly in font of them.)

Still, patrons continued to ask library staff to add filtered terminals - a move the BPL had originally rejected as infringing upon intellectual freedom. Although most staff remained strongly opposed to filtering, the staff responded to the complaints by proposing a mixture of filtered and unfiltered terminals throughout the system. Before endorsing the plan, the Board asked the library to seek a legal opinion, and the BPL retained Ron Kanter, of the Toronto firm Morris Rose Ledgett, in August. (BPL was the first Ontario library to formally commission a legal opinion on the matter. The Ontario Library Association contributed a third of the legal costs, and copies of the opinion can be purchased through the association's Toronto office.)

Kanter examined municipal and provincial legislation, but based his opinion primarily on the requirements of two federal documents: the Criminal Code and the Charter of Rights and Freedoms. He determined that the only relevant municipal bylaw, which prohibited the selling, renting, or exchanging of adult entertainment, was unlikely to be applied to the Burlington library. Municipal bylaws are generally narrowly drafted and usually narrowly interpreted by the courts, he said in an interview. "It's unlikely they would apply [to libraries] anywhere in Canada." Ontario's Public Libraries Act, meanwhile, mandates libraries to "meet the needs of the community" and states they "may" regulate Internet access - but does not specify that they should or must.

Patrons offered choice

Kanter pointed out, however, that even provinces with more specific library legislation are still bound by the federal laws of the Criminal Code and the Charter of Rights and Freedoms. The Criminal Code outlaws the distribution of obscene materials, said Kanter, including child pornography, hate speech, and "material whose dominant characteristic is an undue exploitation of sex." The best defence is to show "due diligence" in safeguarding such material through precautions such as poster warnings, privacy screens, and filtered terminals. The Charter, meanwhile, affirms freedom of expression, so Kanter told BPL that it is imperative to provide unfiltered terminals as well as filtered ones. In fact, if only one Internet station is available in a given branch, Kanter said "filtering it would likely contravene the Charter". (He admitted, however, that his assumption that libraries are "probably" also bound by the Charter has never been tested in court.)

Armed with its legal advice, the Burlington system established a choice between filtered and unfiltered access as the cornerstone of its Internet policy. Throughout the system, 10 of the 23 Net stations are filtered. (Three of the branches previously had only one Net terminal, but BPL purchased three new stations to offer choice there.) All stations are clearly identified as filtered or unfiltered, and the default Web page on all screens outlines the library's Internet policy. Although BPL policy allows children open access to all library material, the filtered stations are the ones in or closest to the various children's departments.

Kanter's legal opinion has benefited the library in two ways: it's provided a solid, objective basis for broad policy, and has also allowed staff to act with more confidence and authority on Internet matters. Many BPL patrons have stated their philosophical opposition to filtering, says Sonia Lewis, but most appreciate the library's emphasis on choice. "The community seems to be really happy with the decisions we've made."

No solution is perfect, however, and even filters are not guaranteed to catch all obscene material. BPL staff were concerned early on that filters would give patrons, a false sense of security, says Lewis, and warnings about the limits of their effectiveness are posted prominently. Lewis also admits that some patrons have encountered another notorious imprecision of filtering software: innocuous content is sometimes blocked along with obscene material. For example, the notation "XXX" in a URL may trigger a block, even if it doesn't refer to X-rated sexual content.

While the BPL dismissed as impractical the option of attempting to modify its software in advance, Lewis says the library is addressing specific cases as they arise. The first step is to forward the URL in question to SurfWatch (the filtering-software vendor), which examines the page's content to determine of the block is valid. If not, SurfWatch - which blocks sites primarily based on URL - revises its filter accordingly. A recent problem centered on Hotmail, a Web-based free e-mail service: some users were having problems sending and receiving mail, "and that doesn't seem appropriate", says Lewis. Certain words in the headers of e-mail messages appeared to be triggering the blocks, but the library staff were still waiting for a definitive explanation at press time. For the most part, patron reports of both too-light and too-heavy filtering have been rare, Lewis says.

But tweaking software to address filtering problems could create new problems. A separate legal opinion commissioned last year by the Vancouver Public Library (VPL) also emphasizes due diligence, but it specifically advises against revising existing filters. Dan Burnett, of the Vancouver law firm Owen, Bird, contends that, "As soon as you do that you have taken on liability as an editor of the content, rather than just a conduit" So VPL patrons must live with any glitches that block harmless material. (However, only 20 of the Vancouver system's 134 Internet stations are filtered.)

What about libraries that refuse to install filters on any terminals? Would that decision leave them vulnerable in court? Not as long as they show due diligence in other ways, by warning customers and ensuring privacy, in Dan Burnett's opinion. Ron Kanter agrees: "If you exercise extreme caution in other areas, you would probably be seen to be showing due diligence."

But some precautionary measures have their own set of practical problems. Privacy screens, for instance, tend to become marked with fingerprints, and as a result, users often remove them from the monitors. In such cases BPL staff "encourage" the patrons to replace the screens, says Lewis, and the phrase "on the advice of our lawyers" is often an effective trump card. On the plus side, privacy screens have had some unforeseen advantages as well. "The real benefit", says Lewis, "is for those who don't want everyone walking by to see that they're researching AIDS or breast cancer."

While privacy screens are a low-tech option, they have cost the BPL considerably more than the filtering software has. For the first year of licensing SurfWatch for the entire BPL system, the library spent $210, and subsequent annual fees will be less. The 3M-made privacy screens cost $200 each, and since the BPL has only had them for a year, Lewis has little indication yet how long they'll last.

Brian Campbell, systems and technical services director at the Vancouver Public Library, suggests another method of ensuring privacy. "You could see workstation monitors into desks", he says, "so that people are looking down, and other people can't look at them from a distance". Although conversion costs for existing workstations would be prohibitive, two B.C. library systems, in Richmond and Coquitlam, both recently added new Internet workstations with inset monitors.

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